126

CHICAGO

PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 126

THE NEW INTERNATIONAL LAW SCHOLARSHIP

Jack Goldsmith and Eric A. Posner

THE LAW SCHOOL THE UNIVERSITY OF CHICAGO

May 2006

This paper can be downloaded without charge at the Public Law and Legal Theory Working Paper Series: http://www.law.uchicago.edu/academics/publiclaw/index.html and

The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract_id=901991

* Henry L. Shattuck Professor of Law, Harvard Law School. ** Kirkland and Ellis Professor of Law, University of Chicago Law School. We thank theGeorgia Journal of International & Comparative Law for organizing this symposium on ourbook, the symposium participants for their very thoughtful comments on Limits, and KalRaustiala for helpful comments on the essay. Eric Posner thanks the Lynde and Harry BradleyFoundation and the John M. Olin Foundation for financial support.

1 JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005).

463

RESPONSE

THE NEW INTERNATIONAL LAW SCHOLARSHIP

Jack Goldsmith* & Eric A. Posner**

I. INTRODUCTION

The Limits of International Law sets forth a general theory of internationallaw.1 The book rejects the traditional explanations of international law basedon legality, morality, opinio juris, and related non-instrumental concepts.Using simple rational choice tools, the book seeks instead to provide aninstrumental account of when and why nations use international law, when andwhy they comply with it, and when and why international law changes. Thebasic descriptive story is that international law emerges from and is sustainedby nations acting rationally to maximize their interests (i.e., their preferencesover international relations outcomes), given their perception of the interestsof other states, and the distribution of state power. Limits also makes twonormative arguments: nations have no moral obligation to comply withinternational law, and liberal democratic nations have no duty to engage in thestrong cosmopolitan actions so often demanded of them.

We are grateful for the thoughtful criticisms of Limits in this symposium.Below we identify points of agreement, clarify some of our positions, andrespond to major criticisms. We also outline what appears to be an emergingconsensus about the appropriate path of international law scholarship.

II. POINTS OF CONSENSUS

464 GA. J. INT’L & COMP. L. [Vol. 34:463

2 THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS 24-25 (1990). 3 Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599, 2603

(1997).4 Margaret E. McGuinness, Exploring the Limits of International Human Rights Law, 34

GA. J. INT’L & COMP. L. 393, 395 (2006); Daniel Bodansky, International Law in Black andWhite, 34 GA. J. INT’L & COMP. L. 285, 288 (2006); Peter J. Spiro, A Negative Proof ofInternational Law, 34 GA. J. INT’L & COMP. L. 445, 453 (2006).

5 Allen Buchanan, Democracy and the Commitment to International Law, 34 GA. J. INT’L& COMP. L. 305, 309 (2006).

6 Kenneth Anderson, Remarks By an Idealist on the Realism of The Limits of InternationalLaw, 34 GA. J. INT’L & COMP. L. 253, 254 (2006). Anderson also notes that this view prevailsamong NGOs and other international activists.

7 Id.

Most of the essays in the symposium are critical of the book. Butunderneath the criticisms lies an emerging consensus in support of severalpropositions central to Limits.

The primary intellectual target of Limits is the claim—widespread in earliergenerations of international law scholarship, and still dominant today—thatnations comply with international law for non-instrumental reasons. Non-instrumental explanations for compliance can include a sense of obligation tocomply (opinio juris), or international law’s normative pull,2 or the absorptionof international law into a nation’s internal value set.3 To our surprise, manyof the essays in this symposium question whether these non-instrumentalexplanations are even worthy of an academic response. Andrew Guzman andKal Raustiala reject the non-instrumental approach explicitly. MargaretMcGuinness calls our focus on it “a classic straw man,” a sentiment echoed byPeter Spiro and Daniel Bodansky.4 And Allen Buchanan says that the claimthat nations have a moral obligation to comply with international law is anobvious “error” that is hardly worthy of a response.5

As Ken Anderson correctly notes, “norm-based methods of internationallaw [the view “that international law itself exerts a discernible ‘pull’ upon thebehavior of states, as a normative and moral force”] still predominate in theinternational legal academy both in the United States and Europe.”6 The factthat none of the commentators in this symposium defends such normativeapproaches to international law, and that many question our focus on it, issurely, as Anderson says, a “telling fact about shifts in international lawscholarship, at least in the United States.”7

A related point is that, as Anderson also notes, the symposium participants“are all quite accepting of the basic utility of the rationalist paradigm that

2006] THE NEW INTERNATIONAL LAW SCHOLARSHIP 465

8 Id. Anderson and McGuinness are partial exceptions, as is Buchanan, who is not a lawyer,and who does not express a view on the descriptive elements in Limits.

9 Bodansky, supra note 4, at 288. Our most sympathetic critic at the symposium, Anderson,is the major exception here. Anderson correctly notes that not everyone has been swept awayby the advance of the social sciences over the last three decades. And Anderson (along withothers in the symposium) correctly identifies a central methodological move in Limits (and insocial science and the natural sciences generally)—namely, simplification. We explained inLimits the virtues of building a theory from simple and reductive premises, virtues canvassed inBodansky’s essay, and we will not rehearse the arguments in favor of doing so (or of using socialscience methodologies generally). These arguments are extremely familiar and can be found inmany places—in legal debates about law and economics, in philosophical critiques of rationalchoice, in the work of dissenting economists, and in the debates over the advance of rationalchoice in political science.

10 Anderson, supra note 6, at 254.11 See, e.g., Ryan Goodman & Derek Jinks, How to Influence States: Socialization and

International Human Rights Law, 54 DUKE L.J. 621 (2004).

underlies” Limits.8 To be sure, McGuinness and Spiro question whether wehave focused on the right actors (nations v. NGOs), David Golove raisesmethodological objections to our particular use of rational choice, and Guzmanand Raustiala argue that rational choice is consistent with more robustconceptions of international law. But overall these essays reflect a point madeby Bodansky: “many international lawyers . . . would not fundamentallydisagree with [Limits’] rationalist methodology.”9

The contrast between the attitudes of the symposium participants and thenon-instrumental view of international law embraced by traditionalinternational law scholars thus could not be starker. This raises a puzzle. Howcan the traditional international law scholarship “predominate” if thesymposium participants “are all quite accepting of the basic utility of therationalist paradigm that underlies” Limits?10 The answer is that a majorgenerational change is underway. The symposium participants are generallyyoung people who have rejected the traditional international law scholarshipof their elders. Having been exposed in law school to social scientificapproaches to legal scholarship, and having witnessed how political scienceand economics have brought fruitful insights to international relations, thesescholars have realized that international law scholarship has fallen behind otherareas of legal scholarship by at least thirty years. This is not just a point aboutrational choice. Other new forms of international law scholarship that reject,or complement, rational choice approaches are also more sensitive tomethodological issues and empiricism.11 The result is greater attention to thesocial science virtues: methodological self-consciousness, empiricism, andtheoretical rigor.


12 This degree of rigor will be familiar to law professors who write about domestic law, andespecially to law and economics scholars. And it is largely absent from traditional internationallaw scholarship, where scholars generally (1) do not explain their assumptions, (2) do notaddress limitations on their assumptions, (3) conflate their positive and normative arguments,(4) do not advance testable hypotheses, (5) ignore evidence that contradicts their argument, and(6) selectively choose evidence that supports their theory. No one who has read the internationallaw literature would deny these claims, so we do not think it is necessary or fruitful to citeparticular examples.

13 The content of international law can also reflect coercion, but treaties that result fromcoercion always reflect a cooperative element, however thin. See GOLDSMITH & POSNER, supranote 1, at 89. International law in the form of treaties can also provide important informationabout the intensity of state preferences. Id. at 91-99.

Limits is unusual in the field of international law scholarship for (1) makingits assumptions explicit, (2) addressing the limitations and criticisms of itsassumptions, (3) separating positive and normative arguments, (4) framingclaims as testable hypotheses, (5) addressing alternative hypotheses andattempting to weigh the evidence, and (6) choosing case studies and otherevidence carefully.12 Many of the commentators criticize Limits onmethodological and empirical grounds; we welcome such criticisms, andaddress them below. For now, what is important to notice is how the standardsof analysis are shifting in international law scholarship. If international lawscholarship generally—including the scholarship of our critics—comes toembrace the standards of methodological and empirical care that the criticsdemand of Limits, the discipline would be significantly improved.

III. HOW INTERNATIONAL LAW MATTERS

The responses evince much confusion about how we believe internationallaw matters to the behavior of states.

Our essential claims are as follows. International law provides a focal pointfor coordination, and establishes what counts as cooperation in a prisoner’sdilemma.13 Such patterns of behavior can arise in a decentralized fashion, inwhich case they are identified as rules of customary international law (CIL).But CIL rules tend to be relatively unclear, making cooperation andcoordination by custom relatively fragile. Through communication,negotiation, and drafting common documents, nations can clarify theirexpectations about the opportunities for the joint gains that can be achieved bycoordination and cooperation. In a repeated prisoner’s dilemma, a clear ruleof cooperation can reduce both opportunism and unintended defections from


14 Bodansky says that “if international law has little potential to constrain state behavior,then we have little reason to try to develop it.” Bodansky, supra note 4, at 287. This is untrueif “constraint” is understood as we explain it in the previous paragraph.

the cooperative game. In a coordination situation, a clear rule reduces thelikelihood of an unintended failure of coordination.

Once the rule of cooperation or focal point for coordination is establishedby custom or treaty, nations comply for one of three general (and not mutuallyexclusive) reasons. The first is fear of retaliation in a prisoner’s dilemma.Each state complies with the rule because it fears retaliation, and a loss of thecooperative surplus, if it does not. The second is fear of a failure ofcoordination. A CIL rule or treaty works by aligning the relevant expectationsand helping parties to avoid the costs of failing to coordinate. A third and quitedifferent reason is fear of reputational loss from failing to comply with the rule.

Under this theory, international law does not pull states toward compliancecontrary to their interests. International law emerges from states pursuing theirinterests to achieve mutually beneficial outcomes, and it is sustained to thedegree to which it continues to serve those interests. When international lawchanges, as it often does, it does so because state interests (again, statepreferences over international relations outcomes) change due (for example)to changes in technology, or in relative wealth, or in domestic government.The transition from the old to new rule of international law is not alwayssmooth, for the world lacks stable international institutions—legislatures,regulatory agencies, effective courts—to facilitate the change. Instead, weoften see violation, rhetorical clashes, retaliation, and sometimes war as theinternational order shifts from an old to a new equilibrium.

With this background, it should be clear that we do not, as many of ourcritics suggest, think international law is irrelevant or unimportant. It is veryimportant, and indeed often crucial, in helping nations to reap gains from (andavoid losses from) interaction. Nor do we think that international law isinconsequential. The terms of a treaty matter to the gains each state receivesfrom the treaty through cooperation or coordination. That is why statesnegotiate so intensely over treaty terms. We even accept that international law“constrains” states, as long as one is careful to understand “constraint” to meanthat when international law establishes a focal point for coordination or thecooperative solution in a prisoner’s dilemma, nations wanting to reap thebenefits of coordination or cooperation will be constrained to abide by thecoordinating or cooperating solution.

We do, however, think it is generally wrong and theoretically unhelpful toview international law as an exogenous force on state behavior.14 In that sense,


15 But not Hans Morgenthau. McGuinness claims that Morgenthau argued that“international law does not affect interstate relations and is therefore unworthy of muchscholarly attention.” McGuinness, supra note 4, at 394. To the contrary, Morgenthau thoughtinternational law played an important role in international relations and he devoted significantscholarly attention to it, see HANS MORGENTHAU, POLITICS AMONG NATIONS 249-86 (2d ed.1955); Hans Morgenthau, Positivism, Functionalism, and International Law, 34 AM. J. INT’LL. 260 (1940), although he did criticize excessive doctrinalism and excessive optimism aboutinternational law’s ability to foster collective security.

and that sense primarily, our theory does not give international law the sametype of importance attributed to it by traditional international law scholars. Inaddition, we show throughout the book that the evidence traditional scholarshave used to show the exogenous force of international law is susceptible tomultiple plausible interpretations, including the very simple interpretation thatstates are acting consistently with the law because the law does not require thatthey deviate from their private interest (the “coincidence of interest” paradigm).Perhaps some scholars mistake the last claim to be an argument thatinternational law does nothing at all—a claim associated with some “realists”in political science15—but that is a serious misreading of our book.

It is true that our book emphasizes the “Limits” of international law, andthat we are more skeptical than most scholars about what international lawmight accomplish. But it is important to understand why, in our view,international law is so limited. International law is limited because it is aproduct of, and is bounded by, state interests and the distribution of power.Given the multiple conflicting interests of states on various issues, and theparticular distribution of state power with respect to those issues, many globalproblems are unsolvable. To recognize this point is not to reject internationallaw.

Indeed, the view to the contrary implicitly adopts a kind of “Whig” theoryof the development of international law, analogous to the long discreditedWhig theory of history, which holds that history is a story of constantimprovement toward some ideal end. International law scholars recognize thecurrent imperfection of international law, but, lacking a theory of the limits ofinternational law, see no reason why this imperfection should be tolerated.Thus, they are drawn to the conclusion that international law can only getbetter, and all that stands in the way of its improvement is error or ideologicalrigidity. This is not a plausible view of either international law or history.

IV. REPUTATION AND THE ROBUSTNESS OF MULTILATERALINTERNATIONAL COOPERATION


16 Andrew T. Guzman, Reputation and International Law, 34 GA. J. INT’L & COMP. L. 379,381-82 (2006).

17 GOLDSMITH & POSNER, supra note 1, at 102. For our reliance on reputational arguments,see id. at 31, 93, 103-04, 172-75.

18 With respect to the first approach, we set it aside for methodological reasons, and wequestion its empirical basis, see id. at 9-10, 103, but we did not claim to demonstrate that it isuntrue.

Guzman says that we “dismiss reputation” and “ignore reputationaltogether”—at least with regard to multilateral cooperation.16 This is not quiteso. Limits relies on reputational theories of compliance “throughout thebook,”17 including in our analysis of multinational institutions. But Limits isindeed much more cautious than Guzman in its reliance on reputationalarguments.

There are several ways that economists model reputation, and these wayscan all be applied to international legal compliance, as a matter of theory. First,one might simply assume that a state incurs a reputational cost whenever itviolates international law. Second, one might use a model of asymmetricinformation, where states comply with international law in order to show thatthey have characteristics that make them appealing cooperative partners withother states. Third, one might rely on the simple iterated prisoner’s dilemma,where information is complete and states keep promises only to avoidretaliation.

One cannot dismiss any of these approaches out of hand, and we did not inLimits.18 But we think the first and second are less fruitful approaches than thethird, and we rely mainly on the third in the book. The first has the virtue ofsimplicity, but, as we noted in Limits, it assumes what needs to beexplained—namely, why states comply with international law. The second canbe used to explain compliance, but it is much more complicated than the third,and is thus difficult to test. The third has the virtue of simplicity andtestability. For this reason, the book relies mainly on the third theory, thoughin several places (especially in chapters 4 and 6), we rely on the second theoryas well.

One of the hypotheses that can be derived from the third approach (but notthe second, at least not as clearly) is that compliance with a treaty shoulddecline as the number of state parties increases. This hypothesis is familiarlyknown as the collective action problem. While this is hardly a novel claim, itis ignored by traditional international law scholarship, which attributes greatersignificance to multilateral treaties and international organizations than to old-fashioned bilateral treaties, which, on our account, should be more robust.


19 Id. at 87-88.20 Id. at 102.21 Kal Raustiala, Refining The Limits of International Law, 34 GA. J. INT’L & COMP. L. 423,

429 (2006).22 The U.N. data base contains 517 multilateral treaties, but it is not clear whether this

collection is comprehensive. It does appear to hold all major multilateral treaties; there may beother such treaties that are of minor importance. See http://untreaty.un.org/English/access.asp.

Indeed, we argue that the main function of multilateral treaties is to providefocal points around which pairs of state cooperate.19 Two importantimplications follow from this view. First, bilateral collective goods will varygreatly even though all the states are members of the same treaty regime.Second, multilateral treaties do not solve multilateral collective actionproblems; instead, they help states solve multiple bilateral cooperationproblems. These implications are testable, and we support them with evidencethroughout the book; unfortunately, with the exception of Golove, none of ourcritics discusses the evidence.

Ultimately, the role played by reputation is, as we noted in Limits, anempirical question.20 Raustiala, relying in part on credibility (i.e., reputation)arguments, maintains that states engage in “extensive” and deep multilateralcooperation.21 If Raustiala is right—if we see multilateral treaties andinternational organizations solving genuine multilateral prisoner’s dilemmasamong several dozen or more states—then it would be fair to conclude thatreputational concerns of either the first or second sort outlined above would bedoing more work than we suggest in Limits. But do we really see extensive anddeep multilateral cooperation?

Raustiala notes that there have been over 50,000 treaties since 1945. Thisnumber is much less impressive than it seems. If each of 190 states entered justtwo treaties—say, an extradition treaty and a treaty of amity—with every otherstate, this would amount to about 36,000 treaties. All of these bilateral treatiesmight (at best) reflect genuine bilateral cooperation, but would say nothingabout multilateral cooperation. And of course most nations have many morethan two bilateral treaties. So the 50,000 figure is misleading, since the vastmajority of the 50,000 treaties are merely bilateral treaties that do not purportto reflect multilateral cooperation. More relevant is the multilateral treaty, ofwhich, according to the U.N., there are perhaps 500 or 600.22 In our book, weaddress only a half dozen or so of these treaties, and provide evidence that theydo not reflect genuine multilateral cooperation. Do the remaining treatiesactually solve n-player collective action problems? Or do they do other things,


23 Raustiala, supra note 21, at 429 (emphasis added).24 At least not before 9/11, when the NATO nations agreed that the attacks on the United

States triggered Article 5. But the subsequent response of NATO to the 9/11 attacks has hardlybeen an example of solving a multinational prisoner’s dilemma, or even of compliance with theNATO treaty.

25 Our claim is not that NATO has been inconsequential. We think it has been consequentialin discrete contexts, but that international law’s contribution to these consequences is theestablishment, in the NATO treaty, of a coordinating forum and process.

26 See generally MICHAEL GLENNON, LIMITS OF LAW, PREROGATIVES OF POWER:INTERVENTIONISM AFTER KOSOVO (2001).

27 GOLDSMITH & POSNER, supra note 1, ch. 5.

like provide coordination for pairwise cooperation (our conjecture), expresssymbolic commitments, or simply fail because they were too ambitious?

These are important questions, and we lack space and time to analyze andaddress the literatures cited by Raustiala. But we do have simple answers toRaustiala’s questions: “Why [do] NATO, the WTO, the U.N., and the manyother international organizations that populate New York, Geneva andelsewhere [exist],” and “why, if international law is so limited, do states keepcreating and elaborating it?”23 Raustiala and we agree that nations entered intothese treaties because they perceived that they gained more than they lost fromthem. But what they gained from these three treaties in particular was not, wethink, the solution to a multilateral prisoner’s dilemma. Article 5 of the NATOtreaty imposes an important obligation of mutual self-defense that was nevertested.24 The rest of the treaty imposes empty obligations (such as settlingdisputes by peaceful means and strengthening free institutions) and performsthe coordinating function of providing a forum and basic procedural ruleswhereby different constituencies can come together to solve particularproblems at the retail level, often in small groups.25 This coordinating functionis also the primary accomplishment of the U.N. Charter. The Charter does, tobe sure, impose strict obligations about the use of force, but these obligationshave been honored in the breach.26 As for the WTO, we argued in Limits thatit is an example of an institution that is best understood as resolving bilateraldisputes between states.27

These answers are necessarily compressed, and there is much more to sayabout what multilateral institutions accomplish. But even these observationsdo lead us to flip Raustiala’s question above and ask, “Why, if internationallaw is not so limited, do states keep failing to create effective internationallaw?” There are pressing international problems—war, refugee crises, globalwarming, the proliferation of nuclear weapons, international terrorism, thedepletion of fisheries, intrastate conflict, lingering protectionism—that states


28 Id. at 6.29 Id. at 91-95, 104-06, 138-39.30 Id. at 6.

are unable to solve. A good theory would explain both why international lawexists and why it remains highly imperfect. Limits tries to do this. Othertheories—at least other theories in the legal academy—do not.

V. STATE ACTORS AND STATE INTERESTS

Limits assumes that the relevant agent is the state, not the individual. Wetalk of states acting in their interest, rather than individuals causing states to actin their (the individuals’) interest. As we explain in Limits, we generallyidentify the state interest with the interest (preferences) of its leadership—aninterest that can be informed by many factors.28 The most prevalent criticismof Limits concerns its focus on the state as the relevant actor, and on theconcept of a state “interest.” We explained these choices in Limits, but we addfurther thoughts here.

The assumption that collective entities like states act instrumentally toachieve certain ends tracks ordinary language and has proven extremely fruitfulin the social sciences. In economics, it is conventional to assume thathouseholds, firms, corporations, governments, and—yes—states makedecisions and take actions based on instrumental calculations. In politicalscience, it is conventional to assume that Congress, the judiciary, parliament,governments, and—yes—states similarly make decisions and take actions tomaximize their preferences. In these and other fields, scholars implicitlyassume that collective entities act instrumentally. The claim that any goodsocial science theory must assume that individuals are the relevant agentswould require one to reject a huge swath of influential scholarship going backdecades.

We do not deny that one can learn something about leaders’ preferences(and thus about state interests) by looking at the domestic influences thatinform those preferences. Indeed, in many places in the book—for example,in talking about the role of legislatures in ratification, or about how domesticinterest groups determine a state’s interest related to trade, or about howbureaucrats and courts foster compliance with international law—we do justthis.29 In this sense, our focus on the preference of government leaders as theembodiment of the state interest is, as we explained in Limits, a parsimoniousmethodological choice that can be modified in discrete contexts when focus onthe domestic politics underlying leaders’ preferences would be fruitful.30


31 Many others have taken this approach. See, e.g., Kal Raustiala, States, NGOs, andInternational Environmental Institutions, 41 INT’L STUD. Q. 719 (1997).

McGuinness and Raustiala urge us to reject our presumptive focus on thestate and rely more thoroughly and systematically on domestic politics. Theyargue that if we did, we might find reasons to be less skeptical of internationallaw’s power to foster cooperation. We are doubtful that a more thoroughexamination of domestic politics would lead to this conclusion, for we doubtthat domestic actors systematically prefer international legalization orinternational law compliance to their opposites. Of course we might be wrong;it might be possible to build up a comprehensive theory of international lawbased on domestic politics and domestic actors that would be superior to, andmore optimistic than a theory that rested primarily on government leaders andthe state itself. We suspect that such a theory would be too complicated andfine-grained to yield general insights or predictions, but we will not knowwhether this is true until someone proposes such a theory. As far as we know,no one has. Although there is an interesting body of literature (some of whichMcGuinness and Raustiala cite) that tries to find correlations in particularcontexts between international law and domestic political structure, no onewriting in this literature offers a general theory of international law. Wesuspect the reason is that most of the interesting features of international lawcan be explained by simple assumptions about the state interest in discretecontexts, as opposed to lower-level or more fine-grained phenomena, whichintroduce unnecessary complexity. But again, we emphasize, we could bewrong, and as mentioned above, we sometimes found it useful forunderstanding the state interest to look at domestic politics.

McGuinness and Spiro make a different point about individual actors. Theysay that our theory is flawed because it leaves NGOs and other non-state actorsout of the equation. In our view NGOs are like other interest group inputs thathelp determine the state interest.31 We also make an important point—largelyoverlooked in the literature and in the commentaries—that NGOs have noparticular interest in forcing states to comply with international law as opposedto whatever goals or agendas those NGOs have. McGuinness and Spiro wantto give NGOs a more elevated status, but while they provide many stories, theirclaims are vague and they fail to advance a theory that makes sense of thesignificance of these actors. They both say, for example, that NGOs influenceinternational norms more than they influence international law, a point we donot address in Limits. Spiro calls our failure to address such influence a“formalist dodge,” because we focus on how legal rules and institutions, as


32 For criticisms of the various NGO theories of international law, see Eric A. Posner,International Law and the Disaggregated State, 32 FLA. ST. U. L. REV. 797 (2005).

33 David M. Golove, Leaving Customary International Law Where It Is: Goldsmith andPosner’s The Limits of International Law, 34 GA. J. INT’L COMP. L. 333, 337-38 (2006).

34 See, e.g., GOLDSMITH & POSNER, supra note 1, at 109-10 (defining state interest in thehuman rights context); id. at 138-39 (defining state interest in the trade context).

35 Golove, supra note 33, at 338.

opposed to other factors, affect international behavior. But we are not engagedin a formalist dodge; we are trying to figure out how international law, asopposed to scores of other factors, influence state behavior. In a book aboutthe “limits of international law,” we do not take a position on whether normcascades, religious movements, the actions of great leaders like Napoleon andGandhi, frenzies of nationalism, multinational institutions or NGOs likeAmnesty International and Microsoft Corporation, and other economic,sociological, and psychological phenomena, might affect the behavior of statesor the people who lead them. Indeed, compared to these kinds of phenomena,we suspect international law is often of minor importance. PerhapsMcGuinness and Spiro agree? McGuinness and Spiro jumble up internationallaw and non-legal norms into a witch’s brew of influences on state behavior.But this explains nothing, and only highlights the fact that their assertionsabout the influences of NGOs are not based on a theory about how, or when,or why they have influence (and how, or when, or why they do not).32

Golove and others complain about our use of the concept of state interest.33

Golove is wrong to claim that we do not specify a state’s interest, for we werecareful to do so in discrete contexts.34 His real objection seems to be that ourconcept of state interest is too fluid and too context-dependent.35 Anyinstrumental account of state behavior—and Golove does not object toinstrumental accounts in general—must posit what the state is trying tomaximize. And, of course, there is nothing unusual, in everyday talk or insocial science, about ascribing different preferences to states in differentcontexts. When economists model the behavior of corporations, they oftenassume that corporations maximize value to shareholders; but sometimes theyassume that corporations maximize the interests of their managers or somecombination of shareholders’ and managers’ interests. There is no single rightway to model the interest of the corporation; the correct modeling strategydepends on the problem to be studied. Similarly, we do not assume that thereis a single state interest like security or prosperity; a complex aggregation offactors influences such as leaders’ decisions on the international stage, and sogeneralization is hazardous.


36 GOLDSMITH & POSNER, supra note 1, at 138-39.37 Id. at 109-10.38 Id. chs. 1-2.39 Spiro, supra note 4, at 455; Golove, supra note 33, at 348.40 GOLDSMITH & POSNER, supra note 1, at 45.41 Spiro, supra note 4, at 455.

But when one moves from abstract discussions and tries to understand aparticular area of international law, it becomes possible to make reasonableconjectures about leaders’ preferences and thus about state interests. In thecase of trade, for example, we agree with the approach of economists whoassume that states maximize the interests of domestic exporters, import-competers, and consumers.36 In the case of human rights, we assume that statesdo care to some degree about abuses in other states.37 Both of theseassumptions reflect common sense, both are possibly wrong, and both are thesubject of valuable literatures. But however one ends up specifying the stateinterest (and it is noteworthy that our critics do not challenge our specificationsin particular contexts), the structural factors identified by our theory—generalproblems of collective action and coercion, and the opportunities ofcoordination and cooperation—remain relevant.

VI. CIL, CASE STUDIES, HISTORY

In Limits we argued that because CIL rules were vaguer, more contested,and more ambiguous than rules embodied in treaties, CIL did a poorer job thantreaties of fostering cooperation and coordination, and as a result was morefragile than treaties. We examined four case studies of supposedly well-settledCIL rules and concluded that the behaviors associated with these rules weremore consistent with our theory than with other accounts of CIL.38

Golove and Spiro say that our CIL case studies suffer from selection bias.39

We are sensitive to problems of selection bias, and (unlike the overwhelmingmajority of international law scholarship) we explained the reasons we choseour case studies. We chose them because (a) they were supposed to be settledrules of CIL, according to the literature, and thus hard cases for us, and (b)there was lots of historical evidence that we could explore to test our theory.40

Spiro criticizes us for looking at “musty old rules of little contemporaryrelevance or interest.”41 We looked for well-settled contemporary rules of CILagainst which to test our theory, but frankly could not find a single example.The CIL of human rights is much talked about, of course. But as we explainedin a different part of Limits, the gap between what this CIL requires and the


42 GOLDSMITH & POSNER, supra note 1, at 132-33.43 Golove, supra note 33, at 362, 370-74.44 Id. at 363-64.

actual behavior of states is vast.42 We thus did not think that human rights wasa plausible candidate for a case study of a CIL—it would have been too easya case to discredit—and we doubt Spiro would either. We also looked at otherCIL rules—for example, rules concerning prescriptive jurisdiction, or variousmodern aspects of the laws of war—and again could not find any settled anduncontroversial examples. In Limits we invited critics to offer differentexamples of CIL—modern or traditional—that contradict our hypothesis. Noone at this symposium did.

We also invited critics to examine our case studies for accuracy andcompleteness. Golove took us up on this offer and his examination ofhistorical materials concerning neutrality rules in the Civil War is useful andilluminating. There is much to agree with and argue about here, but we willfocus on Golove’s two central themes.

The first theme is that the relevant CIL rules were actually much less settledthan we claimed in the 1860s, and thus the United States’ response, whileperhaps hypocritical, technically did not violate CIL.43 As Golove notes, manytreatise writers have claimed that the United States did in fact violate variousCIL rules of neutrality during the Civil War.44 We will not attempt to furtherdefend this view, for such a defense would (because of the hopelessly contestednature of CIL) involve irresolvable arguments about what types of, and howmuch, evidence constitutes a settled and binding rule of CIL. We instead makethree other points related to the broader themes in Limits.

First, a remarkable aspect of Golove’s history is how rigorouslyinstrumental both U.S. and British leaders were in calculating whether and howto comply with CIL. Golove provides no evidence of leaders being motivatedby moral obligation to follow international law, or by internalized habit, or bythe pull of legitimacy. Second, Golove basically argues that an apparentlysettled rule of CIL was not in fact settled or binding, because the rule in factwas a complex standard or a nuanced group of rules-and-exceptions. This isa typical response to arguments and evidence that CIL rules do not constrainstates. But this typical move in an area of supposedly settled CIL justunderscores our main point about why CIL is so weak and manipulable. Third,as Golove briefly notes, the fragile CIL rules of neutrality did not surviveWorld War I. This point is a useful reminder of an important dimension ofinternational law (especially CIL) that our theory makes sense of, but thattraditional theories neglect, namely: international law changes, sometimes


45 Such changes happen not only when a regime fails altogether, as in the neutrality case,but also in cases (such as with the U.N. Charter) where treaty terms stay constant but practicesassociated with treaties change dramatically as the political situation in the world changes.

46 Golove, supra note 33, at 337.47 Id. at 365.48 Id. at 345.

frequently. This usually happens when exogenous shocks of various sorts arefollowed by “violations” of international law as states adjust to a newequilibrium reflecting the new configuration of power and interest.45 These lasttwo points highlight an irony in Golove’s argument: He begins by criticizingus for claiming that CIL is “weak and unstable,”46 but he then tells a storyabout how it was weaker and less stable and more manipulable than weimagined at the outset of the Civil War, and did not survive World War I. Ifthis is what Golove means by “leaving customary international law where it is,”we concur.

Golove’s second major theme is more of a challenge to the theoryarticulated in Limits. While our empirical analysis focused on the United Statesside of the war, Golove also looked at the British side. And what he found wasthat leaders in Great Britain, in deciding how to respond to the United States’“switch” to embrace something closer to the traditional British view ofneutrality, cared about the effects of their actions on disputes with third partiesin future wars. It is no surprise to our theory that British leaders were thinkinginstrumentally about the future. Nor is it a surprise to our theory that the lawof nations was relevant in “framing and often in resolving” disputes, a pointthat we emphasize throughout Limits. But what does raise an interestingquestion for our theory is the fact that British officials “believed that theprecedents established by the U.S. measures would serve British interests infuture wars, not only with regard to the United States but also with regard tostates more generally.”47

What might explain this fact? It is possible, as Golove suggests, that“reputation may play a wider role [than we claim], affecting not only futurebilateral relations between the cooperating and defecting states but the futureinteractions between the defecting state and third parties.”48 British worriesabout the third-party effects of switching (or maintaining) certain neutralityrules might be evidence of a more robust role for reputation, just as (as wesuggested above) evidence of deep and widespread multilateral treatycooperation would. This possibility would not represent a challenge to ourinstrumental framework, but would weaken our claim that bilateralismpredominates and suggest a more robust role in our framework for reputation.


49 GOLDSMITH & POSNER, supra note 1, at 54-59, 87-88, 130, 144-60.50 Buchanan asserts that the claim that nations lack a moral obligation to comply with

international law is obvious and hardly worthy of discussion. Buchanan, supra note 5, at 309.The point may be obvious to Buchanan, but it has not been obvious to many law professors andadvocates, and thus we welcome Buchanan’s concurrence. Buchanan further maintains thatcosmopolitan theorists do not, as we suggest, ascribe cosmopolitan duties to institutions. Id. at

Another possibility, however, is that Britain was attempting to maintain itstraditional policy stance as the focal point for what counted as cooperation inindependent bilateral encounters. Neutrality is a classic example ofinternational law that reflects multiple pairwise relationships rather than agenuine collective good. Britain was constantly at war during the nineteenthcentury, and it no doubt wanted the rest of the world to know what its policyon neutrals was, so that small wars would not inadvertently become big wars.Embracing a different rule with the Americans would have ambiguated thecontent of its policy and weakened its ability to “cooperate” in future conflictswith different states. As discussion in Limits of diplomatic immunity andmultilateral treaties suggests, states will often (for the sake of convenience)promote or agree to uniform rules but violate them bilaterally and selectively,depending on the degree of conflict of interest with the various other states towhich the rules nominally apply.49

We do not know whether Golove is right or we are. One way to decidewould be to examine whether Britain adopted uniform neutrality policies, inpractice, vis-à-vis all (or, we would accept, most) states, regardless of whetherthey are more or less powerful, or more or less important for British strategicinterests. If Britain talked the same game, but sometimes acted differentlydepending on the nature of the bilateral relationship, that would support ourview—indeed, it would be consistent with other case studies in our book,especially the one concerning the rules governing ambassadorial immunity. IfBritain’s deeds matched its words regardless of the bilateral pairing, that wouldsupport Golove’s view.

VII. NORMATIVE ISSUES

Buchanan focuses on chapters 7 and 8 of Limits, where we argued thatnations have no moral obligation to comply with international law, and thatliberal democratic nations have no duty to engage in strong cosmopolitanaction like ratifying treaties that do not promote national welfare or engagingin humanitarian intervention. Buchanan does not believe these arguments areimportant, and thus he does not engage them.50 Instead, he changes the subject


321, n.20. On this point he is simply wrong. In addition to the prominent scholars cited inLimits whom Buchanan does not discuss, see GOLDSMITH & POSNER, supra note 1, at 207-08,Martha Nussbaum’s recent book Frontiers of Justice (to take yet one more example) expresslyascribes cosmopolitan duties to institutions. MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE:DISABILITY, NATIONALITY, SPECIES MEMBERSHIP 306-10 (2006). Buchanan claims thatNussbaum does not ascribe cosmopolitan obligations to institutions, see Buchanan, supra note5, at 321, n.20, but in Frontiers and elsewhere she clearly does. Moreover, Buchanan complainsthat Limits indiscriminately lumps together cosmopolitan theorists like Nussbaum with MichaelGreen, whose work ascribing cosmopolitan obligations to institutions Buchanan does not seemto take seriously. Id. But Nussbaum explicitly relies upon Green’s work in attributingcosmopolitan duties to institutions. NUSSBAUM, supra, at 308, 444.

51 Buchanan, supra note 5, at 312-13.52 GOLDSMITH & POSNER, supra note 1, at 109-10.

to focus on the moral obligations of individuals. In particular, he maintainsthat our state-centered claims do not adequately address a point that he takesto be fundamental, namely: that individuals have a moral obligation to causetheir nations to promote the rule of law in international affairs. Buchananthinks that if individuals do in fact have such obligations, and if they act onthose obligations, then states that represent them might not act merelyinstrumentally, but rather might act in ways to achieve moral progress or toattain cosmopolitan goals.51

Buchanan is confused about what international law, conceived in purelyinstrumental terms, might accomplish. If morally motivated citizens convincea government (perhaps on penalty of non-reelection) to engage in cosmopolitanaction or further the international rule of law, then the nation would be actinginstrumentally to further its interests. Nothing in our instrumental approach tointernational law rules out the types of moral state action that Buchanan is soeager to preserve, and indeed, Limits discussed examples of such statebehavior.52 Buchanan is right to say that Limits provides many descriptive andnormative reasons to be skeptical of his robust moralistic conception of whatinternational law might accomplish, but (as Anderson’s essay at times suggests)nothing in an instrumental approach to international law rules out thisconception per se. (Indeed, Buchanan assumes that his moral individuals willcause their governments to serve their preferences on the internationalstage—an instrumental state-centered conception.)

Setting aside for a moment the degree to which Buchanan engages thearguments in Limits, what about his central claim that individuals have a moralobligation to cause their nations to promote the rule of law in internationalaffairs? The first thing to notice about Buchanan’s argument is that he saysnothing concrete about what it means to promote the international rule of law.


53 Buchanan, supra note 5, at 309.54 Id. at 316.55 For a philosophically skeptical take on the possibility of global justice, see Thomas Nagel,

The Problem of Global Justice, 33 PHIL. & PUB. AFF. 113 (2005); see also Jack Goldsmith &Stephen D. Krasner, The Limits of Idealism, 132 DAEDALUS (2003), available at 2003 WLNR6542939.

He suggests vaguely that the ideal rule of international law would protectindividuals’ interests and autonomy.53 He then lists standard elements of thedomestic rule of law—generality, stability, impartiality, publicity, equalitybefore the law, conflict resolution that does not rest primarily on power, andprincipled deliberation.54 How do these elements apply to the international ruleof law, and what relationship do they bear to individuals’ interests andautonomy?

We have no idea. Buchanan says that commitment to the international ruleof law does not require adherence to international law, and indeed he advocatesviolation of international law in humanitarian intervention and other contexts.But what, then, is the international rule of law? Is it the idea that internationallaw should apply to states generally and impartially? Regardless of theirrelative power, or domestic form of governance? Are states supposed toengage in principled deliberation in designing international institutions? Doesthis mean that relative power and self-interest should be off the table ininternational negotiations? How, in a decentralized world of necessarily quitedifferent nation-states (an assumption Buchanan embraces, as he pooh-poohsworld government), are we supposed to establish this international rule of law?Does Buchanan have in mind the rule-of-law idea that a person should have thechance to defend herself before an impartial forum prior to conviction for acrime? It is not clear how this idea might be applied to states that are accusedof violating international law. There is no neutral international forum; and itis not clear that a neutral international forum is possible, or that the type offorum that might be realistic should have the power to resolve disputes betweenstates, or that states would comply with the decisions of such a forum, or thatstates should be punished for violating international law that reflects theinterests of powerful nations or that is made by non-democratic nations; and soon. Finally, would Buchanan’s international rule of law better promoteindividual freedom and autonomy more than the current international systemdoes? How, realistically?55

Buchanan does not address these or scores of other obvious issues that mustbe addressed in order to assess whether the international rule of law is anattractive ideal. Rather than pursue these considerations, he simply asserts that


56 GOLDSMITH & POSNER, supra note 1, at 221-23. 57 Ironically, in other work Buchanan distances himself from what he regards as the woolly-

headed reform-the-U.N. style of scholarship, and claims that reform for the sake of advancingthe international rule of law must be consistent with international realities. See ALLEN E.BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FORINTERNATIONAL LAW (2004). However, lacking a theory of the limits of state behavior, heproposes institutions—such as an EU-operated military force that would intervene inhumanitarian crises—that are themselves no less dubious. For a discussion and critique of hisviews on these grounds, see Eric A. Posner, International Law: A Welfarist Approach, U. CHI.L. REV. (forthcoming 2006).

the ideal is possible and attractive and asserts that individuals have a moralobligation to achieve it. Buchanan is right that Limits does not address theideal of the international rule of law. It does not address this ideal because theideal is inadequately defined—in Buchanan’s work and more generally.

In addition to arguing that individuals have a duty to cause their states tofurther the international rule of law, Buchanan argues that individuals have aduty to cause their states to engage in more cosmopolitan action. Individualsshould cause states to engage in more humanitarian intervention, to give awaymore wealth to poor countries, to enter into treaties that further global welfareeven at the expense of local welfare, and the like. This is an idea that we atleast understand. But as far as the project of Limits is concerned, it suffersfrom two problems.

The first is that, as a matter of descriptive fact, individuals usually do notlive up to the obligations that Buchanan says they have. Even liberaldemocracies with populations that are by reputation much more other-regardingthan the United States are not much interested in humanitarian intervention,and give away only a pittance (and a diminishing pittance) of their GDP to poorcountries (and even then in self-regarding ways).56 And the validity ofBuchanan’s optimistic take on the possibilities of human development tosupport more humanitarian action must be considered in light of the failures inthe Sudan following the supposedly important lessons learned in Rwanda.57

The second and related point is that Buchanan’s entire argument turns onindividuals both possessing moral duties to cause states to engage in morecosmopolitan action, and acting on these duties successfully. If individuals donot in fact have the obligations that Buchanan posits, or if they violate theirobligations, or if they are members of a disempowered minority, then, as weargued in Limits, there is little legitimate basis, within democratic governments,for leaders to engage in cosmopolitan action of the type Buchanan wants topreserve.


VIII. CONCLUSION: THE NEW INTERNATIONAL LAW SCHOLARSHIP

By way of conclusion, we return to where we began, to the emergingconsensus about the appropriate path of international law scholarship. Theconsensus is reflected not only in the essays of most of the contributors; it isalso reflected in much recently published work by authors not present at thesymposium. The consensus marks a decisive rejection of the old style ofinternational law scholarship, and therefore we think it appropriate to recognizethe emergence of a “New International Law Scholarship.”

The New International Law (NIL) scholars are a diverse group, and it isalways difficult to generalize. Nonetheless, we claim that NIL scholars differfrom traditional scholars along one—or more frequently, more—of thefollowing dimensions.

Positive v. Normative. NIL scholars distinguish normative and positiveclaims, and state positive claims as hypotheses that can, in principle, be tested.Traditional scholars tended to confuse normative and positive claims.

Empiricism. NIL scholars are interested in doing empirical scholarship,including both quantitative and qualitative studies. NIL scholars try to evaluateevidence that might contradict their theories. Traditional scholars tend tochoose anecdotes that best support their arguments.

Skepticism. The scholarly attitude is one of skepticism toward receivedwisdom and easy answers. NIL scholars take a skeptical attitude toward theefficacy of international law and institutions. Traditional scholars defendinternational law and seek to “advance” international law, which usually meansboth subjecting more of international relations to it and revising it in order tomake it consistent with liberal internationalism. As noted above, the historicalsense of international law scholars is Whiggish rather than scholarly.

Anti-doctrinalism. NIL scholars focus on doctrinal scholarship less thantraditional scholars. Although doctrinal scholarship is important, traditionalinternational legal scholars spend too much time on it, and not enough onunderstanding the theoretical underpinnings of doctrine.

Social Science. NIL scholars are influenced by social scientific theory and,especially, rational choice theory. Traditional scholars do not completelyignore theory, but they use theory mainly as a source of rationalizations, andin some cases rely on philosophical rather than social scientific theories.However, much of traditional scholarship is devoid of theoreticalunderpinnings.

Most of our critics at this symposium share our commitment to most ofthese values. This is a good sign. Another good sign can be found in lawschool hiring trends, which reflect increasing impatience among non-


58 As Raustiala notes, “from the vantage point of political science, some of [Limits’]conclusions are straightforward, and even obvious at times.” Raustiala, supra note 21, at 443.As we noted in Limits, our approach to international law is indeed deeply influenced by politicalscience (and economics), though we differ from the mainstream of these approaches in our focuson custom, the depth of our commitment to instrumentalism, a few analytical details abouttreaties, and our normative arguments. See GOLDSMITH & POSNER, supra note 1, at 15-17. Thequite different reactions to the book by political scientists, who think we are saying little newon the positive front, and international law scholars, who find the book to be shocking or radicalin some dimensions, is revealing.

international law scholars for the type of scholarship that they left behinddecades ago.

Our optimism about the trend in international law scholarship is only partlytempered by the politically charged atmosphere of this field. As so many of thecommentators in this symposium make clear, some of the hostility toward ourbook reflects the anxiety that more rigorous methodological approaches of thetype that the academy values are incompatible with the traditional liberalinternationalist agenda that has long dominated the international law academy,and that continues to dominate it today.58 Younger scholars with liberalinternationalist leanings do not want to be identified with the older tradition ofinternational law scholarship, of which the legal academy is appropriatelycontemptuous, and they are committed to methodological rigor. But they alsodo not want to abandon their liberal internationalist ideals, and a great deal ofhostility toward our book is, we suspect, a reflection of their anxiety thatmethodological rigor and liberal internationalism are mutually exclusive. Wepredict, with some misgivings, that much of the NIL scholarship over the nextdecade will reflect this tension. It will work hard to demonstrate, in amethodologically rigorous fashion, that international law can foster robustmultinational cooperation and that the United States and other countries shouldcreate more international law and organizations. Whether it will succeedremains to be seen.

Readers with comments may address them to: Professor Eric Posner University of Chicago Law School 1111 East 60th Street Chicago, IL 60637 [email protected]

The University of Chicago Law School Public Law and Legal Theory Working Paper Series

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